Disparate Impact Claims

What does disparate impact mean?

Disparate impact means that there are policies or practices in place where you work that do not overtly treat women in a discriminatory way, but nonetheless have a negative impact on women. These policies are often described as "facially neutral," in that they don't mention women specifically, but they harm women in practice.

What is a facially neutral policy?

A facially neutral policy is one which does not explicitly discriminate against women, but rather appears to be objective. Often this will take the form of a test or employment requirement that applies to men and women equally, but has the practical effect of excluding women from jobs, promotions, or other benefits.

What kinds of claims can be brought as a disparate impact claim?

Some of the most common types of disparate impact claims are failure to hire and failure to promote claims. In these claims, the employer's policy for hiring or promoting disadvantages women. Other examples of disparate impact claims may relate to pay increases, pregnancy, transfers, training programs, leadership programs, and firing policies.

I think that a company policy adversely affects me because of my gender, how do I prove it?

To prove that your employer has a policy or practice that impacts women differently from men, you must show all the following the elements: 1) you have identified a particular employment practice or policy, and your employer's use of it; 2) you can demonstrate that the policy or practice has a disparate impact on women; and 3) you can demonstrate a "causal connection" between the identified practice and the disparate impact.

You do not need to show that your employer intended to discriminate against women. You do, however, have to present evidence that the employment practice at issue has an adverse impact on women in the workplace. Generally, if you show that your employer engages in an employment practice or policy that causes a disparate impact on women, and your employer is unable to rebut your assertion by showing that the practice at issue is "job-related for the position in question or consistent with a business necessity," then you can proceed with a disparate impact claim.

What is the difference between disparate impact and disparate treatment?

The main difference between disparate treatment and disparate impact is the intent of your employer. Disparate impact involves a policy which your employer may not have intended to be discriminatory, but which nonetheless affects women more negatively than men. Disparate treatment, on the other hand, involves action by your employer which is explicitly intended to discriminate against women, such as separate pay scales for men and women.

Are there times when an employment policy or practice may legally impact women different than men?

Yes. Under the Washington Law Against Discrimination (WLAD) an employer may discriminate on the basis of sex if a bona fide occupational qualification (BFOQ) applies. For example, a BFOQ may apply where it is necessary for the purpose of authenticity (e.g., model, actor, actress) or maintaining conventional standards of sexual privacy (e.g., locker room attendant, intimate apparel fitter).

What could my employer do to deny my allegations, and how do I respond to their denials?

In Washington, courts use a three-step analysis to evaluate discrimination cases. First, you must present initial evidence of discrimination -- for this step, the court will assume that everything you allege is true, and if it is sufficient to show that discrimination took place, the case will continue. Next, your employer will have an opportunity to provide non-discriminatory reasons as to why the company policy adversely affects women. Finally, to prevail, you must rebut your employer's explanation.

You can demonstrate that your employer's reasons are unworthy of belief with evidence that: 1) your employer's reasons have no basis in fact; 2) even if the reasons are based on fact, your employer was not motivated by those reasons; or (3) the reasons are insufficient to motivate the adverse employment decision.

Does it matter when the discrimination occurred?

Washington enforces a very strict time limit on when a claim of sex discrimination can be filed. You must file your complaint with the Commission within six (6) months of the date of your employer's discriminatory conduct. Under federal law, however, you have three hundred (300) days to file a claim with the Equal Employment Opportunity Commission (EEOC). If you choose to sue in the courts with a private attorney you have roughly three years to file the claim; however, the sooner you talk to someone at the state or federal agency or a private attorney the better.

What options do I have if my employer has fewer than 8 employees?

Unfortunately, under Washington law, if your employer has fewer than eight (8) employees, your legal options are severely limited. Employers with fewer than eight (8) employees are exempt from the WLAD. The Washington Supreme Court, however, found that the state has established a clear public policy against discrimination based on sex in both statute and judicial opinions. As a result, if you believe that you have been fired because of sex discrimination, you may have a legitimate cause of action for the common-law tort of wrongful discharge even if your employer has less than eight (8) employees.

If I prove my disparate impact claim, what kind of remedies am I entitled to?

You may be entitled to injunctive relief or monetary damages. For more information, please see Remedies.